Reply from the Council of Europe Committee of Ministers on Intersex Exclusion

The terms of reference adopted by the Committee of Ministers referred to measures to combat discrimination based on “sexual orientation or gender identity”.

The Committee of experts (DH-LGBT) which prepared the draft recommendation was composed by real experts in the field, including representatives of non-governmental organisations such as ILGA-Europe and Transgender EU. The Committee was well aware of the specific problems of intersex people, but at the time of the adoption of the mandate to draft the recommendation, in 2008, there was little awareness that this was an issue which needed to be addressed separately at European level, in the context of LGBT rights.

The DH-LGBT had to draft a legal text requiring consensus by 47 member states, with specific terms of reference which clearly referred to discrimination against lesbian, gay, bisexual or transgender persons on account of their sexual orientation or gender identity.

Although there is no explicit reference to intersex people in the text, and while it is understood that the “gender identity” perspective does not entirely fit the specific reality of intersex people, there is nothing in the recommendation that can be seen as excluding its application to intersex people facing discrimination. On the contrary, some provisions (such as in para. 35 “no person should be subjected to gender reassignment procedures without his or her consent”) were drafted having precisely in mind the specific problems of intersex people, in particular children.